Mistaken Eyewitness Identifications: New Jersey Takes the Lead

DNA exonerations have proven that eyewitness identifications are wrong in a disturbing number of cases.  According to the Innocence Project, there have been 297 post-conviction DNA exonerations in the United States.  More than 72% of these false convictions were based on faulty eyewitness identifications, making eyewitness misidentification testimony the leading cause of these wrongful convictions.  At least 40% of these mistaken identifications involved a cross racial identification.

The biggest problem with mistaken identifications arises when the witness is shown a photo array or a lineup in which the actual perpetrator is not included. Many times the witness identifies someone who looks similar to the actual perpetrator.  The witness then convinces himself or herself that this new individual was actually the person that committed the crime.  As a result, in the witnesses mind, they actually see this new individual’s face as the person who committed the crime rather than the actual perpetrator. Even after DNA evidence has exonerated the innocent person, the witness or victim still has a hard time believing that they were wrong.  Witnesses and victims should be able to identify the actual perpetrator right away in the photo array or lineup. If they take more than a minute identify the perpetrator, there is a very good chance that the actual perpetrator of the crime is not included in the lineup or photo array.

It is important to consider eyewitness identifications along with all the other evidence before determining, beyond a reasonable doubt, that the defendant is guilty of the offense charged. If there is other evidence, such as a weapon or other circumstantial evidence to support the eyewitness identification, then there is an extremely solid case against the defendant. However, if the case relies solely on an eyewitness’s identification and there is little other evidence to support a conviction, the jury must remember that these eyewitness identifications are not infallible and that human beings do make mistakes.

Sadly, jurors continue to place a great deal of reliance on eyewitness identifications at trial, mistakenly believing this evidence to be reliable.  In 2011, the New Jersey Supreme Court took the national lead on this subject in State v. Larry Henderson, 208 N.J. 208, In that case the Court, recognizing that eyewitness testimony is the leading cause of wrongful convictions across the country, promised modernization of the model jury charge standards governing eyewitness identification and improvement in the way identifications are conducted and recorded.

On September 4, 2012, those promises became a reality when the Court published revised jury charges.  The new jury instructions analyze the reliability of the eyewitness’s identification by focusing on such factors as: the witness’s opportunity to view the suspect; the duration of the observation; the distance between the witness and the suspect; the degree of attention; evidence of intoxication; and the presence of a weapon, among others.  In addition, the Court published a new court rule that mandates the recording of the identification procedure where possible as well as the discovery of all records relating to an identification.

It is a real shame when a person loses years of their life in prison for a crime they did not commit. We shouldn’t have to rely on DNA evidence down the road to exonerate them. Hopefully, other states will follow New Jersey’s suit and revise their jury charges and court rules in the face of this irrefutable scientific evidence.